Month: May 2016

The fight against terrorism in Europe What the EU does (not do) and what it should do (*)

FondazioneBasso

(*) This was the title of a discussion seminar organised by Fondazione Lelio e Lisli Basso on April 18, 2016, attended by leading criminal judicial cooperation experts as well as by Emilio DE CAPITANI, Executive Director of the FREE Group,at the end of which the following document was drafted, which we submit to the attention of all concerned and in particular those responsible for policyin this sector.

A true EU criminal justice area: proposals for discussion

The Lisbon Treaty has profoundly changed “criminal justice cooperation” in the European Union.First, it provides for the introduction of legislative harmonization measures in the spheres of substantive and procedural law, through directives to be approved by means of ordinary legislative procedures.This creates the necessary legal bases for the extension of Eurojustcompetences,well beyond its present remit,and the creation of a European Public Prosecutor’s Office, whose responsibilities would initially be limited to the prevention of fraud against the EU budget, but which later could be extended to other areas, first and foremost the fight against terrorism and organized crime.

These innovations were not so much due to the initiativeof enlightened lawmakers but rather decades of cooperation between judicial bodies of member countries (starting with Council of Europeconventions), the trialling of horizontal forms of joint work (from the European Judicial Network to the practical implementation of Eurojust), and the obvious fact that in a globalized world,crime – financial, organized and terrorist – knows no boundaries, especially in Europe, which has become a single economic area.

This evolution has been followed by major European legal experts, who have supported this long and continuously evolving process.

However, the innovations introduced by the Lisbon Treaty, which entered into force more than six years ago, have remained largely unimplemented. After a first phase, between 2010 and 2012, positively characterized by the adoption of a number of important directives on the harmonization of a uniform set of minimum rights for the defence in criminal proceedings (the necessary prerequisites for building mutual trust among diverse systems and mutual recognition of decisions), legislative efforts seem to have run aground against the great difficulties of the Council, the inertia of the European Parliament and the substantial paralysis of Commission proposals. The only legislative measure of any importance came into force in 2014, the Directive on the European Investigation Order (EU Directive 2014/41 of 3 April 2014), the result of a proposal made by some Member States dating back to 2010,to be transposed, in the not too distant future, by May 2017.

Meanwhile the Commission’s proposals for a new directive on offenses against the Union’s financial interests (so-called PIF Directive) and regulations for the reform of Eurojust and for the introduction of a European Anti-Fraud Public Ministry have for years been lying on the Council’s table after extenuating negotiations and after undergoing a series of modifications that have greatly weakened the original scheme.

With regard to the anti-fraud prosecutor, the text currently under discussion, if approved, does not provide for a truly European public prosecutor’s office, ie a European judicial organ, but only what, in substance, is just another intergovernmental agency, something quite different from the common organ of investigation and prosecution envisioned in Article 86 of the Treaty. Also the proposal for a Eurojust Regulation (a timid rewriting of existing provisions rather than any real consideration of the new possibilities offered by article 85 of the TFEU), at present languishes in an apparent dead end. But what is most striking is that not even in the field of minimum criminal legislation for the protection of the Union’s financial interests, that is to say the defence of public assets that entirely belong to the Union and not to single member states, have we succeeded, in almost four years of negotiations, in reaching agreement in the Council and Parliament. The risk is that, at the end of the negotiations, we shall end up with a diluted version not only of the original 2012 proposal but also the 1995 Convention that the directive is meant to replace. This would represent the first time that a step back has been taken in the process of forming European criminal law and, to some extent, of European integration itself.

Another very serious matter is what appears to be the Council’s substantial closure towards any real discussions of major policy guidelines for the area of freedom, security and justice, with a view to drafting a general document that can replace the Stockholm Program, which expired in December 2014, a document which can continue the course set by the Tampere and Hague programs of 1999 and 2004 respectively. This document, expressly provided for in Article 68 TFEU, has, for nearly two decades, constituted “the” common agenda in this sector for both European and national institutions, something which can be used to set individual measures into a more general framework, and offer future prospects. Its absence seems to be a clear indication of the European Council’s failure to exercise the prerogatives assigned to it by the Treaty itself.

We believe we need to combat this inertia.

The recent dramatic events in France and Belgium have shown, though this was already more than clear, that serious forms of crime, and among them of course terrorism, take advantage of the freedom of movement between our countries. And it is common knowledge that the sort of terrorism we must fight today is structurally and operationally different from the forms that we have known up to now. It operates beyond national borders and beyond European confines, and to imagine that it can be defeated by national criminal policies is a dangerous illusion.

According to the good intentions that have been expressed on numerous occasions, European leaders are motivated by a desire to achieve a higher level of cooperation in criminal matters. However, fine words do not seem to be have been followed by facts.

What is primarily missing from discussions is a frank, empirical and objective assessment of the state of implementation and operation (and especially non-operation) of existing cooperation instruments. We often hear of the difficulties which have prevented effective, trustworthy and complete exchanges between authorities of different states as regards criminal reports and investigations. National authorities do not always cooperate effectively, as would be expected from the principle of mutual trust. Even the flow of information to Eurojust seems to be insufficient, in the eyes of many national authorities, and accompanied by reticence. We must put an end to these nationalistic jealousies. If a crime has transnational characteristics, an answer must be found at transnational level. This is particularly evident with regard to terrorism, and what is certain is that it will not be the introduction of barriers at borders or the presence of police on trains to stop terrorists.

We are asking for this verification to take place, with the support of the many judges and prosecutors that have already cooperated in good faith, and of the academies and universities that have greatly contributed to the development of a common culture.

Negotiations on the European Public Prosecutor’s Office and the PIF Directive are proceeding wearily and contradictorily, based, moreover, on texts that by no means reflect the proclaimed desire to establish a body that will give added value to investigations in this area. They must be finalised within a reasonable time so that the future Public Prosecutor can have effective and efficacious powers of investigation, overcoming neo-nationalist instincts and obstacles.

We believe that the Commission urgently needs to put forward a proposal for a new “facilitation” directive on fighting criminal activities, which, by taking advantage of situations of war and extreme poverty, speculate on migrants and refugees. There have been too many deaths in the Mediterranean and the Balkans. The absence of an effective policy to combat crimes constitutes a black hole in the Union’s policies.

An answer must be found to the annulment of the Directive on data retention by the Court of Justice, Digital Rights Ireland Ltd(C-293/12)of 8 April 2014, to which no response has so far been given. This has resulted in the absence of common rules, so that each country has returned their own national regulations, which are very different, creating uncertainty and confusion in requests for and exchanges of data.

We hope that the framework of European tools to halt the proceeds of criminal activity may finally be completed through the presentation of the Commission proposals on mutual recognition of confiscation orders, including those that are not conviction based.

The European Union must not give in to the temptation of emergency measures for criminal activities, which may lower the level of freedom and security of its citizens. It should instead focus on harmonization and cooperation, so as to raise the overall efficiency of the system while enhancing individual rights.

Contributing to the drafting of this paper were Ignazio Patrone, Lorenzo Salazar, Eugenio Selvaggi and AndreaVenegoni, judges with extensive experience at European level.

The Orbanisation of EU asylum law: the latest EU asylum proposals

ORIGINAL PUBLISHED ON EU LAW ANALYSIS 

by Steve Peers

There have been a number of EU proposals to deal with the perceived ‘refugee crisis’ in Europe over the last year. The latest batch, issued this week, are perhaps the most significant to date. They concern three related issues: visas (notably a short-term Schengen visa waiver for Turkish nationals); Schengen (partly suspending the open borders rules for six months); and asylum (changing the Dublin system on responsibility for asylum seekers, and creating a new EU asylum agency). Further proposals on legal migration and other EU asylum laws are coming in the months ahead.

Essentially, these proposals amount to the ‘Orbanisation’ of EU asylum law. They copy and entrench across the EU the key elements of the Hungarian government’s policy, which was initially criticized: refusing essentially all asylum-seekers at the external border and treating them as harshly as possible so as to maintain the Schengen open borders system.

Background

The surge in the number of refugees and migrants coming into the EU since 2014 led initially to a discordant response from Member States, with Germany and Sweden initially welcoming the arrivals and Hungary trying to stop them. Last September, in a bid to modestly assist the ‘frontline’ border states of Greece and Italy with the large numbers of asylum-seekers, the EU adopted two Decisions on ‘relocation’ (discussed here), in principle taking up to 160,000 asylum-seekers off those countries’ hands and distributing them among other Member States. However, this ‘Plan A’ was ineffective, as some Member States refused to cooperate (even launching legal action) and the remainder relocated very few people.

So ‘Plan B’ was developed: an EU/Turkey deal whereby Turkey either prevented the large number of refugees on its territory from leaving, or readmitted them back from the EU if they did reach EU territory (which in practice usually means the Greek islands). To implement this, Greece agreed to treat Turkey as a ‘safe third country’ or a ‘first country of asylum’ under EU asylum law, with the result that claims were treated as inadmissible. As discussed earlier on this blog, this is a highly dubious interpretation of the law. To induce Turkey to cooperate, the EU agreed to spend money on the welfare of Syrian refugees in Turkey, and to drop the short-term visa requirement for Turkish citizens to visit the EU countries in the Schengen system. (It also agreed to open one more ‘negotiating chapter’ relating to Turkish accession to the EU, but this is a trivial concession: only one of these 35 chapters has been agreed to date, in 11 years of accession negotiations).

In the meantime, many Member States became concerned about the numbers of migrants and refugees reaching their territories, and so resumed checks on the previously open borders between Schengen states. However, under the relevant Schengen rules dating from 2013 (on which, see my thinktank report on the Schengen system here), the authority to do this will soon expire, unless the EU as a whole agrees to suspend the Schengen system for one or more periods of six months. This prospect has been mooted since December 2015 (as discussed in detail here).

So this week’s proposals aim to implement and entrench these policy developments: waiving the visa requirement for Turkey; allowing a limited suspension of Schengen; and amending the Dublin system to reflect the EU/Turkey agreement, to deter asylum-seekers from moving between Member States (allowing Schengen to be fully reinstated) and to incorporate a new version of the failing relocation rules.  All of these measures are related, but I will examine each of them in turn.

Visas

There are three separate proposals to amend the EU visa list. All of them need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  The proposals, if adopted, would not apply to the UK and Ireland, which have their own laws on visa requirements (or waivers) for non-EU countries, due to an opt-out from the EU’s visa laws. That opt-out forms part of those countries’ overall opt-out from the Schengen system, which allows the UK to check people at its borders and refuse entry to non-EU citizens based (mostly) on UK law. It is therefore dishonest to suggest that the proposals would lead to an increased migrant influx into the UK. Indeed the UK’s withdrawal from the EU would not change the rules at all as regards non-EU citizens seeking to enter the UK from (the rest of) the EU – other than the small minority who apply for asylum or who are family members of EU citizens.

These proposals would, in turn: a) waive visa requirements for Turkish citizens; b) waive visa requirements for Kosovo; and c) make it easier to reimpose visa requirements in the event of immigration control issues. It should be noted that the Commission also recently proposed to waive visa requirements for Ukraine and Georgia; those proposals are still under discussion. All these proposals would, if adopted, amend the EU’s main law on visa lists, which dates initially from 2001. That law has been amended many times since, without any official codification of those amendments, but I have codified it unofficially here. Note that the visa waiver would apply to Turkish citizens, not to Turkish residents like the refugees from other countries living there.

The visa waiver for Kosovo is not linked to the overall refugee crisis, but rather to the policy of strengthening relations with EU neighbours, in part as an incentive for them to settle their own disputes. The Commission report on Kosovo fulfilling the requirements for visa waivers refers in particular to a recent border agreement between Kosovo and Montenegro. It also refers to meeting the requirements as regards readmission, reintegration, document security and organised crime.

As for Turkey, there is obviously a direct link with the EU/Turkey refugee deal. A fast-track visa waiver was promised to Turkey as part of that deal. But it is still subject to Turkey meeting the EU’s conditions. According to the Commission’s report, Turkey meets all but 7 of 72 requirements: the exceptions relate to issues like readmission, corruption, terrorism and document security, and the Commission believes that they will be fulfilled by the time the visa waiver is granted. In any event, the document security point is addressed by limiting the visa waiver to those with biometric passports.

A longer staff working document elaborates on this assessment, but it is not convincing on several points. As regards asylum issues, it states that the obligation to lift the geographical limitation on the Geneva Refugee Convention (which means that Turkey only fully recognises Europeans as refugees) is met by Turkey because that country treats non-Europeans just as well as if they are refugees. But it skips over the lack of work permits for refugees who are not Syrians. It also concludes that Turkey does not refoule refugees to dangerous countries (as alleged by NGOs) simply by accepting Turkey’s word to the contrary. The Commission also waives the obligation for Turkey to ratify Protocol 7 to the European Convention on Human Rights, on the grounds that its national law offers equivalent protection. But if so, why be afraid of the supervision of the European Court of Human Rights on these issues? And it is only clear reading the staff working document that the (unresolved) concerns about ‘terrorism’ laws are actually concerns about misuse of terrorism law to crack down on freedom of expression. The main report does not even flag this as one of the most significant concerns. And the existence of these concerns gives the lie to the Commission’s argument (in an earlier proposal, still under discussion) that human rights in Turkey are so well protected as to classify Turkey as a ‘safe country of origin’ for asylum purposes.

The proposal to reimpose visa requirements more easily is implicitly linked to the Turkish visa waiver proposal, although in fact it could apply to any State on the visa waiver list (the ‘white list’). The current rules, dating from 2013, allow ‘emergency’ reimposition of a visa requirement by the EU Commission for a six-month period, renewable for another six months if the Commission proposes to amend the law to make this permanent. This temporary Commission decision can be blocked by Member States, but does not need the approval of the European Parliament. The grounds for it are ‘sudden and substantial’ increases in irregular migration, rejected asylum applications or rejected readmission applications from the country concerned.

There are some further details of these rules in the preamble to the 2013 law.  A ‘substantial’ increase is an increase above 50%, and a low rate of recognition of asylum applications constitutes 3% or 4%, although in either the Commission could choose to use a different number.  Reimposition of visas is not automatic: there is a diplomatic phase during which the Commission talks to the officials of the other country and warns them to take action in light of the impending threat.  The Commission will only propose reimposition if it is not satisfied with the outcome of these talks. So far it has not done so.

Basically the new proposal would make it easier to reimpose visas in several ways.

First of all, it would no longer be an ‘emergency’ or ‘last resort’ decision, and the increases in irregular migration, rejected asylum applications or rejected readmission applications would no longer have to be ‘sudden’.

Secondly, the reference period for examining the increased irregular migration, etc would no longer be over six months, but over two months.

Third, the increase in asylum applications would no longer have to lead to ‘specific pressure’ on asylum systems; so there would need not be a large absolute number of asylum applicants from the country concerned, just a large relative increase in the number of applications.

Fourth, the rejected readmission applications would relate not only to citizens of the country concerned, but also to citizens of other countries who transited through that State’s territory. This is obviously aimed at enforcing the key feature of the EU/Turkey plan: the readmission of refugees to Turkey.

Fifth, the possibility of triggering reimposition of visas as compared to the period before the visa requirement was dropped would now apply indefinitely, and would no longer expire after seven years. The immediate impact of this change would be on Western Balkans countries, where (apart from Kosovo) the EU waived visa requirements in 2009 and 2010.

Sixth, the Commission can trigger the clause, not just Member States. It could act on the same grounds plus an additional ground of failure to apply a readmission deal with the EU as a whole.

Again, the final point aims at enforcing the EU/Turkey refugee deal. If Turkey does stop readmitting refugees, the EU can swiftly react by reimposing visa requirements. This works both ways, of course: if the EU threatens to reimpose visas on Turkish citizens on some other ground, such as an increase in Turkish citizens overstaying without authorization, then Turkey will likely refuse to take back refugees. Indeed, as discussed above, Turkey is threatening to do this if the EU does not waive the visa requirements in the first place – which accounts for the EU’s haste on this point.

Finally, a side issue (relating only to Turkey) is worth discussing. The EU/Turkey association agreement has a Protocol, signed in 1970, that sets a standstill on the free movement of services and freedom of establishment. That means the EU and its Member States can’t make the rules on these issues stricter than they were when the Protocol was signed. The CJEU has also ruled that if the rules are made more liberal than when the Protocol was signed, they can’t be made less liberal after that point without violating the standstill (Toprak and Oguz). While the standstill rule doesn’t apply to tourist visas (Demirkan), it does apply to visas for short-term economic activity (Soysal).

So would the standstill rule in the association agreement prevent the EU from reimposing visas for economic activity by Turkish citizens? In its case law (see most recently Genc, discussed here), the CJEU has said that the standstill rule can be overridden on public interest grounds. So far the case law on this point has concerned integration of family members, although it could also be argued that the objective of preventing irregular migration is also a valid ground to override the standstill. In fact, the CJEU has been asked whether migration control objectives can override it, in the pending case of Tekdemir. However, this case won’t be decided until well after June (when Turkey wants the visa waiver in place); and like the earlier cases, it concerns legal migration.

Schengen

The idea of suspending Schengen for up to two years was originally mooted back in December – as I discussed in detail at the time. The mechanics of the process, as I detailed there, have been grinding away for some time. Now we have nearly reached the final stage: a Commission Recommendation for a Council Recommendation to suspend Schengen. Once the Council adopts this (by a qualified majority of Schengen states), the suspension can go ahead.

However, the Commission has tried to limit this suspension in time and in space. It would only apply to Germany, Austria, Sweden, Denmark and Norway (where the unilateral authority to suspend border controls is about to expire), and only for an initial period of six months. The Commission argues that the tightening of EU immigration and asylum law should have had sufficient effect by then, so a further suspension would not be justified. Time will tell if this is true: the Schengen rules allow for three six-month extensions of the initial suspension.

For legal reasons, as I discussed in the earlier blog post, the suspension has to be based on blaming a Member State for insufficient control of its external borders. Obviously, the Commission has named Greece. But it has warm words for Greece’s efforts in the last few months, and flights to and from Greece to the Schengen zone will not be affected. This rather measured and proportionate approach contrasts with the Commission’s asylum proposals – to which we now turn.

Asylum

Again, there are three separate proposals, all of which need to be agreed by the European Parliament, as well as a qualified majority of participating Member States in the EU Council.  First of all, the current Dublin III Regulation, which sets out rules determining which Member State is responsible for an asylum application, would be replaced by a new Regulation – which I will call ‘Dublin IV’. Secondly, the current Eurodac Regulation, which supplements the Dublin Regulation by providing for the storage and comparison fingerprints of asylum-seekers and those who crossed the border irregularly, will also be replaced by a new Eurodac Regulation. Thirdly, thecurrent law establishing an EU agency known as EASO (the European Asylum Support Office), would be replaced by a new law creating an EU Agency for Asylum (the ‘EU Asylum Agency’).

This is just one batch of proposals: as the previous Commission communication from April (discussed here) set out, it will also soon propose new laws to amend the existing laws on qualification (definition) of refugees and people needing subsidiary protection status, asylum procedures, and reception conditions for asylum-seekers. In effect, this will amount to a third phase of the Common European Asylum System.

Currently, the UK and Ireland have opted in to the EU laws regarding Dublin, Eurodac and EASO. They opted out of the second-phase asylum Directives, but are covered by the first-phase Directives (except Ireland never opted in to the first-phase reception conditions Directive). Denmark and the Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) participate in these laws on the basis of treaties with the EU. It would be up to the UK and Ireland to decide whether to participate in the new proposals; if not, the current Regulations continue to apply. If they opt out of the discussions on the proposals, they could still opt in later after adoption of the legislation, if they find that the final result is more to their liking than they had feared at the outset. Denmark and the Schengen associates could refuse to participate, but in that case their treaties with the EU will automatically terminate.

In the event of Brexit, the UK would no longer be subject to any of the EU asylum laws it is now participating in, unless the EU and the UK negotiate an agreement to that effect. It should be noted that the EU has in practice only ever been willing to extend the Dublin rules to non-EU States if those States are also Schengen associates. (Indeed in some cases, the Dublin and Schengen association treaties have been negotiated as a package).

The EU Asylum Agency

I will start with the least contentious of the new proposals.

Currently, EASO has a number of practical cooperation tasks. In particular, it must: ‘organise, promote and coordinate’ the exchange of information and identify and pool good practice, as well as activities relating to country-of-origin information (ie, information about conditions in asylum seekers’ countries of origin), including gathering and analysis of that information and drafting reports on that information; assist with the voluntary transfer of persons granted international protection status within the EU; support training for national administrations and courts, including the development of an EU asylum curriculum; and coordinate and exchange information on the operation of EU external asylum measures. For Member States under ‘particular pressure’, the Office must gather information concerning possible emergency measures, set up an early warning system to alert Member States to mass influxes of asylum seekers, help such Member States to analyse asylum applications and establish reception conditions, and set up ‘asylum teams’.

For its contribution to the implementation of the Common European Asylum System, the Office gathers information on national authorities’ application of EU asylum law, as well as national legislation and case law on asylum issues. It also draws up an annual report on the situation regarding asylum in the EU. At the request of the Commission, the Office may draw up ‘technical documents on the implementation of the asylum instruments of the Union, including guidelines and operating manuals.’ The Office can also deploy ‘asylum support teams’ on the territory of a requesting Member State, in order to provide ‘in particular expertise in relation to interpreting services, information on countries of origin and knowledge of the handling and management of asylum cases’.

How would the EU Asylum Agency be different? As with the parallel proposal for a European Border Guard (discussed here), the Agency would not replace national administrations, but play a bigger role coordinating them.  The main changes are: an obligation to exchange information with the Agency; a stronger role in analysis of the situation of countries of origin, including advice on alleged ‘safe countries of origin’; the development of guidance on applying EU asylum law; monitoring of the Common European Asylum System, including the capacity of Member States to apply it; and increased operational and technical assistance for Member States. An indication of the bigger role for the Agency as compared to EASO will be the planned increase in staff – from about 150 to around 500.

Eurodac

The current Regulation requires Member States to take the fingerprints of all asylum-seekers and irregular border crossers over 14 years old. This information is then stored in the Eurodac computer system. Every asylum-seeker’s fingerprints are compared with those already in the system, to see if he or she has either applied for asylum already or crossed the border irregularly. This is taken as evidence as regards which Member State is responsible for the asylum application under the Dublin rules.

Eurodac can also be used for other purposes. In 2013, the Eurodac law was revised to give police forces and the EU police agency, Europol, limited access to the fingerprint data for the purposes of criminal investigations. Member States may choose to check the fingerprints of an irregular migrant against the system, for the purposes of identification, without storing that data.

The proposed new Regulation would make some key changes to these rules. First of all, it would significantly enlarge the amount of personal data that will be taken and stored. Member States will have to take information on children from the age of six (rather than fourteen), and facial images as well as fingerprints. Eurodac will also now store data on the names, nationalities, place and date of birth, travel document information. For asylum-seekers, it will store the EU asylum application number (see the Dublin IV proposal), as well as information on the allocated Member State under the Dublin rules, for the first time. For irregular border crossers and irregular migrants, it will store the date of the removal from the territory.

There will no longer be an option merely to check data on irregular migrants; rather Member States will be obliged to take and store this information. While the rules on police and Europol access to Eurodac data will not be changed as such (although the Commission will review those rules soon), there will be more personal data for them to access: they will be able to get facial image information, and more individuals will have their personal data recorded in Eurodac in the first place.

Secondly, it will be possible for fingerprint data to be taken not only by national officials, but also (as regards asylum-seekers and irregular border crossers) by the new EU Border Guard and EU Asylum agencies. Thirdly, while asylum-seekers’ data will still be retained for ten years, data on irregular border crossers will now be retained for five years – up from 18 months at present. Data on irregular migrants will also be retained for five years. The data will be marked if a Member State gives a residence permit to an irregular migrant. Finally, Eurodac data will now be made available to third countries for the purposes of return, on certain conditions, including a refusal to disclose if the person who has applied for asylum. But the non-EU country might guess that the person has applied for asylum; in fact the EU’s procedures Directive requires that country to be informed of this in some cases.

The Commission justifies these changes by the need to strengthen the EU’s return policy as regards irregular migrants, and to keep track of them if they make movements across the EU. It believes that taking fingerprints and photos of young children is justified for child protection reasons. Collecting personal data on facial images is justified because some persons refuse to have their fingerprints taken.

This proposal obviously raises huge data protection issues, and it will be important to see what concerns are raised by national data protection authorities, as well as the EU’s Data Protection Supervisor. The arguments about child safety should be independently assessed by child protection experts. It is conceivable that taking facial images would avoid the need to insist upon taking fingerprints coercively, but it’s not clear why the Commission believes that storing data on names, birthdates et al is justified. The use of Eurodac to underpin EU return policy obviates much need to use or expand the Schengen Information System (which currently contains data on non-EU citizens who are meant to be refused entry) for similar purposes, and raises the question of whether there need to be two different databases addressing the same issue. The choice between the two databases is particularly significant for the UK, since it will have access to the Eurodac returns data (if it opts in to the new proposal), but doesn’t have access to the immigration alerts in the Schengen Information System, and indeed can’t have access to those alerts unless (rather improbably) it fully joins Schengen. (However, the UK does have access to the criminal law alerts in the Schengen Information System, such as alerts on suspected terrorists: see my further discussion here. It could lose that access after Brexit, as I discuss here).

Dublin IV

As noted at the outset, the amendments to the Dublin Regulation essentially aim to entrench the EU/Turkey deal and to save Schengen by deterring secondary movements of asylum-seekers, while also making a fresh attempt to establish relocation rules. To accomplish each of these objectives, the Commission proposes an extreme solution which is probably legally and/or politically unfeasible.

Let’s examine each element in turn. In order to entrench the EU/Turkey deal (and possibly future heinous deals with countries like Libya), the proposal transforms a current rule which gives Member States an option to apply to state that a non-EU state is a ‘safe third country’ for an asylum applicant in accordance with the asylum procedures Directive, rather than send the applicant to another Member State or consider the application after a transfer from another Member State under the Dublin rules. The CJEU recently took a permissive view of this provision (Mirza). In place of this option, there would be an obligation to assess the inadmissibility of an application on ‘safe third country’ or ‘first country of asylum’ grounds before applying any of the rules on responsibility for applications. This confirms the current practice as regards asylum-seekers coming from Turkey to Greece, which aims to return as many of them as possible to Greece despite the dubious designation of Turkey as a ‘safe’ country for asylum-seekers.

This doesn’t matter much in cases where Greece would anyway be responsible for considering the application under the Dublin rules, because it was the first country where the applicants entered. (Moreover, due to recent closure of the Greece/Macedonia border and other controls and fences on internal and external Schengen borders, it’s now very difficult to leave Greece even for those asylum-seekers not in detention). But contrary to popular belief, that is not the only ground for assigning responsibility under the Dublin rules. There’s also an obligation to bring family members together, where one of the family members has status as a refugee or asylum-seeker or otherwise has legal residence in another Member State.

The Mirza judgment did not address whether these family rules take priority over the ‘safe third country’ option, but the Dublin IV proposal is clear.  If a case is inadmissible on the dubious ‘safe third country’ or ‘first country of asylum’ rules, then the Member State in question is responsible, regardless of the family or humanitarian clauses in the Regulation. It’s arguable that this is a breach of the right to family life set out in the EU Charter of Fundamental Rights. But it’s certain that this change completely undercuts the broadening of the definition of ‘family member’ contained in the Regulation – extending it to cover siblings and families formed after leaving the country of origin (while Syrians were living in Turkey, for instance). Those changes therefore amount to a legal ‘Potemkin village’ – a cynical façade intending to mislead a naive onlooker.

It might be argued that family members should not be encouraged to pay smugglers and take unsafe routes to reach their loved ones who are already in the EU. Fair enough – but in that case, the EU should take steps to ensure their safe passage (note that the EU’s family reunion Directive requires Member States to admit family members of refugees). There’s nothing in this week’s batch of proposals to do that. The EU’s informal arrangements with Turkey do provide for ‘nuclear family’ members as one category of Syrian refugees to resettle. But these arrangements are not binding and (at time of writing) not even officially published (see this entry in the Council register of documents). They only apply to the ‘nuclear’ family, and only for Syrians.

Next: the attempt to deter secondary movements of asylum-seekers, in order to reinstate the Schengen system. Most notably, there will be punishments for asylum-seekers who do not stay in the responsible Member State. In that case the asylum procedure will be accelerated, and they will lose all benefits (health, education, welfare and accommodation) except for emergency health care. (However, the grounds for detention of asylum-seekers in the Dublin Regulation will not change – though the future proposal to amend the reception conditions Directive might seek to amend the detention rules there instead.) This will overturn the CJEU ruling in CIMADE and GISTI, which was based on the right to dignity in the EU Charter. Let’s put it plainly: asylum-seekers who flout the Dublin rules will be left to starve in the streets – even children, torture victims and other vulnerable people. And fast-tracking their asylum application implicitly aims at refouling them to their country of origin, with only limited suspensive effect of any appeal to the courts.

The violations of the Charter don’t stop there. According to the CJEU case law on the current Regulation, unaccompanied minors can move to another Member State and apply there. This ruling (MA) is also based on the Charter (rights of the child), but the Commission wants to overturn that too – in the process trashing its own proposal dating from 2014. Again, any attempt to argue that this aims to protect children by deterring them from moving is undercut by the prioritisation of inadmissibility rules over family reunion rules (even for unaccompanied children), as well as the failure to insert rules to ensure that the Dublin family rules are actually applied (such as the recent UK ruling on a requirement for DNA tests). If the EU and its Member States care so much about asylum-seeking children, why have they detained so many in Greece in poor conditions, and shrugged as so many suffered in northern Greece – shirking the legal obligations which they accepted to relocate them?

Furthermore, the proposal limits both the substantive and procedural remedies for applicants. They will only be able to challenge a decision on the responsible Member State on the grounds that the asylum system has broken down, or that they should be with their family member. This overturns the opinion in the pending cases of Karim and Ghezelbash (although it is possible that the Court will not follow this opinion). Also, they will only have seven days to appeal: this risks a breach of the Charter right to an effective remedy, given that in the Diouf case the CJEU found that a 14-day time to appeal was acceptable.

The proposal doesn’t only aim to restrict asylum-seekers in order to ensure that Dublin works effectively; it will also restrict Member States to the same end. The essentially unlimited discretionary ‘sovereignty’ and ‘humanitarian’ clauses will be amended to severely limit the circumstances in which a Member State can examine an application that is not its responsibility. If Angela Merkel (improbably) wanted to repeat her open-door policy of summer 2015 in future, the proposal would make that illegal. Various deadlines for Member States to act would be speeded up (although Member States have said before that this is impractical). Conversely, other rules which limit Member States’ obligations will be dropped: there will be longer periods of responsibility after issuing a visa or residence permit, and responsibility for those who cross a border without authorisation, or who abscond or who leave the EU and then come back, will be endless.

This brings us to the relocation rules. These will be triggered once a Member State is responsible for more than 50% of the asylum applications which objective criteria (based on income and population) indicate that it ‘should’ be responsible for. In other words, if Greece ‘should’ be responsible for 50,00 asylum applications under those criteria, other Member States would be obliged to relocate asylum-seekers from Greece once it was responsible for 75,000 applications. But Member States can’t relocate asylum seekers whose applications are inadmissible under the new rules discussed above, so this may have little impact on Greece anyway. Indeed, if the EU/Turkey deal breaks down, the combination of these rules would in principle put Greece in a worse position than it is currently. A new emergency relocation Decision would have to derogate from the Dublin rules again.

Then the proposal becomes truly surreal. The Commission suggests that Member States may opt out of relocating asylum-seekers, but they will have to pay €250,000 per asylum-seeker if they wish to do this. This is a fantasy on top of a fantasy. Member States have already shown that they are unwilling to apply the relocation Decisions of last September, or to adopt the proposal to amend the Dublin rules to this end that was tabled at that time. The idea of financial contributions in place of accepting individuals, whatever its merits, is perceived to be a ‘fine’ and was already rejected by Member States last year. That idea will not suddenly appear more attractive to Member States by doubling down on it, and suggesting a contribution set at an obviously absurd and disproportionate level, which the Commission does not even try to justify.

So why did the Commission jump the shark here? Perhaps someone in the Commission lost a bet. Or perhaps this is a legislative homage to the Belgian surrealist tradition of Magritte, et al. More seriously, it might be intended as a negotiating position. But such a ridiculous position will just backfire: it’s as if management started the latest pay talks with the unions by arguing that the workers should start paying the company for the privilege of working there. Or perhaps it’s a subtle way of addressing Greece’s debt problems: rejecting the relocation of a mere 10,000 asylum-seekers from Greece would transfer €2.5 billion to the Greek treasury – where it would rest briefly on its route to Germany.

I have another theory, well known to followers of British politics. Maybe the €250,000/person proposal is the Commission’s equivalent of ‘throwing a dead cat on the table’. The phrase is borrowed – like the EU’s current asylum policy – from Australia. It means that if the political conversation is particularly damaging to a certain politician, an ally of that politician suddenly does or says something outrageous. Everyone will start talking about that outrageous thing, just as they would be talking about the unfortunate feline; which means that no-one is talking about the original issue any more.  In this case, it means that everyone is talking about the €250,000 – and no-one is talking about the suspension of Schengen, or of the families who would be split up, or the people who would be made hungry and homeless, by the Commission’s Dublin IV proposal.

Conclusion

The Commission’s proposals are not a done deal, of course. Some Member States and Members of the European Parliament have misgiving about a visa waiver for Turkey, on migration control or human rights grounds. MEPs fought for years for many of the provisions in the Dublin III Regulation (on family members and unaccompanied minors in particular) which the Commission now seeks to overturn. As I pointed out above, some of the proposed changes to the Dublin rules are highly vulnerable to challenge in the CJEU, if adopted. The red herring of a €250,000 sanction is already floating on the surface of the pond. And the whole EU/Turkey deal might anyway be overturned at the whim of Turkish President Erdogan – the only politician whose ego makes Donald Trump’s look small by comparison. Nevertheless, EU asylum policy is already becoming more Orbanised in practice, and I would expect at least some elements of the further Orbanisation proposed by the Commission to be adopted.

For over twenty-five years now, the EU and its Member States have been attempting to get the Dublin system to work. The continued abject failures of those attempts to get this pig to fly never seem to deter the next attempt to launch its aviation career.  With this week’s proposals, the Commission is in effect trying to get the poor beast airborne by sticking a rocket up its backside. It might be best to stand back.

Goodbye, cruel world: visas for holidays after Brexit?

ORIGINAL PUBLISHED ON EU LAW ANALYSIS (April 25, 2016)

by Steve Peers

Until yesterday, I have consistently argued that the prospect of British citizens being subject to visas for short-term visits to the EU after Brexit was highly remote. In fact, I even told off some ‘Remain’ supporters who suggested that this might happen. EU policy is consistently to waive short-term visa requirements for wealthy countries (like the USA, Canada and Japan) as long as those countries waived short-term visa requirements for all EU citizens in return. I couldn’t imagine that it was likely that anyone on the ‘Leave’ side would wish to advocate short-term visa requirements for EU citizens visiting the UK after Brexit, thus damaging the British tourist industry and leading to a reciprocal obligation for UK citizens to get visas for short visits to the EU.

Incredibly, I was wrong on this. Yesterday, Dominic Raab, a senior figure on the Leave side, suggested that the UK might want to introduce visas for EU citizens after Brexit, and accepted that UK citizens might be subject to visa requirements for visits to the remaining EU in turn. It can’t seriously now be suggested that it’s ‘scaremongering’ to consider that this might become UK policy after Brexit – unless there’s such a thing as ‘self-scaremongering’ by the Leave side.

Let’s be clear about this. The idea of short-term visa requirements after Brexit is utterly and profoundly stupid. It is by no means a necessary consequence of Brexit, and would cause the maximum possible damage to UK businesses and the ordinary lives of British citizens who seek to visit the EU after Brexit, with little or no security benefit in return.

Background: EU visa policy

As an EU Member State, the UK allows short-term entry to EU citizens without a visa, as well as longer-term free movement of people – although the latter issue is severable from short-term visas. The reverse is also true, of course: simplifying the leisure, family and business visits of millions of British citizens to the EU every year. While there is an earlier treaty from the Council of Europe (a body separate from the EU) which abolishes visa requirements between European states, the UK is not a party to that treaty – and presumably would not become one under Raab’s plans.

The EU has agreements on free movement of people with Norway, Iceland and Switzerland, but it seems clear from official statements by the Leave side that the UK would not sign up to these after Brexit. But as I said, short-term visa waivers are a severable issue: the EU does have reciprocal short-term visa waiver treaties with a number of non-EU countries, as well as a unilateral policy of waiving short-term visa requirements for other wealthy countries who reciprocate. Therefore, all it would take for British citizens to retain the visa waiver for short-term visits to the EU after Brexit would be a British government policy not to impose short-term visa requirements on EU citizens, or a UK/EU treaty to this effect. This seemed highly likely – until Raab’s rant.

The EU decides visa policy as a bloc, so there is no possibility that the UK could do separate deals on short-term visas with individual EU countries. As an exception, Ireland (like the UK at present) has an opt-out from the EU’s visa policy, so the UK and Ireland could retain their separate Common Travel Area arrangements – if they wished to. It’s not clear if Raab also wants to impose visa requirements for Irish nationals (which might also then be reciprocated). If that happens, then border controls would have to be reimposed between Northern Ireland and the Irish Republic, as some on the Leave side have already called for (though others have taken a different view).

EU visas: the legal framework

The EU (apart from Ireland) has a standard short-term visa policy, which entails issuing ‘Schengen visas’ valid for all the Schengen states.  So in legal terms we know what the impact would be of the EU imposing visas on British citizens. The basic rules are set out in the EU visa code, although a few EU countries (Romania, Bulgaria, Cyprus and Croatia) don’t apply that code yet as they are not yet fully part of Schengen. While the Schengen system currently has many well-known problems as regards border control, this has not affected Schengen visa policy, and there is no reason why it would do.

To get a Schengen visa, the visa code requires an application at a consulate, although in practice the applications are often made through a private service provider. Applications can be made up to three months before the date of travel, or six months for multiple-entry visas. Applicants need to provide fingerprints, except for children under twelve and some other limited exceptions. They must also provide documents supporting the reason for their travel, obtain medical insurance and pay a fee of €60 per applicant, along with an extra fee if the applicant uses a private service provider. The fee is reduced to €35 for children between six and twelve, and waived for younger children, as well as pupils and teachers on study trips, researchers and representatives of NGOs. It may be waived in a small number of other cases; but it is always payable for tourist or business trips.

Most applications for Schengen visas are accepted, but applications are scrutinised for subsistence and intention to return, so it may be more likely that unemployed or low-waged British citizens find their visa applications refused. Any rejections will be registered in the EU’s Visa Information System for five years, which may make it less likely for a future application to be accepted. Usually a visa is valid for a period of three months over the next six months, but it is possible to get a multiple-entry visa (valid for several trips over a five year period) if there is a proven need to travel frequently. Visas can’t usually be obtained at the border, so British citizens would have to apply for a visa at least several days in advance to be sure of being able to travel. Without a visa, they would be denied boarding planes, trains or ferries, due to the EU law on carrier sanctions.

Back in 2014, the Commission proposed amendments to the EU visa code. They would, for instance, simplify the rules on getting multiple-entry visas, and allow for earlier applications. But such visas would still not be standard. Recently, both the Council and the European Parliament adopted their positions on this proposal, and so it will likely be agreed later this year. I’ve blogged separately on the main changes that the Commission proposed, as well as the chance to add rules on humanitarian visas, and on the specific proposals affecting UK citizens’ non-EU family members. But if the new code ultimately applies to all British citizens, its impact will be obviously be much greater.

The EU has signed some treaties on visa facilitation with non-EU countries. These treaties don’t waive the visa requirement, but they reduce the application fee and simplify the process. Of course they are reciprocal – the UK would have to cut the fees and simplify the process for EU citizens applying for short-term visas to visit the UK too.

Practical consequences: the unbearable madness of visa requirements

There’s no doubt that visa requirements reduce travel for tourism, business and other purposes. There are detailed estimates of the scale of the economic impact in a reportdrawn up for the Commission before it proposed the revised visa code. Think of it at the individual level: if there’s no visa facilitation treaty, a British couple with two teenagers would have to pay an extra €240 for a family holiday in the EU in visa application fees, with fees often paid to service providers on top. Even with a visa facilitation treaty like the one with Ukraine, the family would pay €70 in fees (€35/adult, under-18s exempt from fees), and again possibly service providers.

Raab argues that all this is justified on security grounds. Is it? First of all, the vast majority of terrorist (or other) offences in the UK are committed by British citizens. But some foreign visitors do commit crimes. How best to screen them out? The basic problem is that imposing a visa requirement doesn’t, in itself, increase our capacity to determine if a particular individual is likely to pose a threat. It simply, in effect, moves the decision on entry in time (to a date before arrival) and space (away from the border to a consulate – although individuals will still be checked at the border to ensure that there is a visa in their passport). The best way of knowing if a particular individual is a threat is by checking the available data.

That information is easy to find if the visa applicant has previously committed a crime in the UK, because in that case there ought to be a criminal record accompanied by an entry ban. But in this scenario, the entry ban information should in principle not only be available to consulates considering a visa application, but also to border guards deciding on entry at the border. So the visa requirement adds nothing. Nor does it add anything as far as EU citizens are concerned: the EU citizens’ Directive allows the UK to impose an entry ban on EU citizens who have committed serious crimes; and the UK can (and does) refuse entry to EU citizens at the border.

What if the visa applicant has committed a crime in another country? Whether people have to apply for a visa or are checked at the border, there is no general access to other countries’ criminal records. However, the UK does have access to some relevant dataas an EU Member State. Last year, it gained access to the Schengen Information System, which includes information on wanted persons, including some terrorist suspects. From 2012, the EU system for exchange of information on criminal recordswas set up (known as ECRIS: the European Criminal Records Information System), and the EU Commission recently reported that it had greatly improved the flow of information on this issue. The ECRIS law provides for criminal records to be exchanged more easily as regards a country’s own citizens (so we now have more information on UK citizens who have committed crimes abroad). Furthermore, the UK opted into the newly adopted EU law on passenger name records.

These laws don’t provide perfect security, of course. Not all terrorist suspects’ names appear in the Schengen Information System, for instance. The passenger name records law is likely to be challenged on human rights grounds, since it gathers information on all passengers, not just suspects. The criminal records law was unable to stop a tragic killing two years ago, because British police unfortunately did not ask another Member State about the killer’s criminal record (on the basis of a separate EU law) when they had the opportunity. As I suggested at the time, it would be desirable to provide for automatic circulation of the criminal records of EU citizens who have been convicted of very serious crimes, if they have been released from prison, so that they can be stopped and validly rejected from entry at the border.  The upcoming amendments to the Schengen Information System would be an opportunity to do this.

But how would Brexit, with or without a visa requirement, improve this situation? It would not give the UK any more access to EU databases, or to other Member States’ criminal records systems; indeed, it might mean less access. The EU has not extended ECRIS to any non-EU countries; the Schengen Information System has only been extended to those (like Norway and Switzerland) that are fully part of Schengen. The EU has some treaties on exchange of passenger name data with non-EU countries, but this policy is being challenged on data protection grounds in the EU court.

More broadly, the EU court has ruled in the Schrems case that personal data can only be transferred to non-EU countries that have data protection law ‘essentially equivalent’ to EU law. The UK would have to commit to continue applying a law very similar to EU law, or risk disruptions in the flow of personal data – affecting digital industries as well as exchange of data between law enforcement authorities. This restriction can’t easily be negotiated away, since the case law is based on the EU Charter of Fundamental Rights, which has the same legal effect as the Treaties. The UK’s compliance with the EU rules would almost certainly be challenged in practice: see by analogy the Davis and Watson case already pending before the EU court. Outside the EU, the effect of a ruling that the UK did not comply with the rules would be a potential disruption of the flows of personal data.

One final point. Let’s remind ourselves that the UK already allows nationals of over fiftynon-EU countries to visit for a short period without a visa. So obviously we have found a way to reconcile the possible security threat this might pose with the needs of the UK economy. Why should that be so difficult to do as regards EU countries after Brexit? The mere existence of that policy anyway creates a loophole: any EU citizen with the dual nationality of one of those non-EU states (or perhaps Ireland) would be able to visit the UK without a visa anyway. Or is the intention to require a visa for everyone?

Of course, this loophole would work the other way around too. As a dual citizen of the UK and Canada, I could still visit the EU visa-free on a Canadian passport. So could any other British people who are also citizens of a Member State, or a non-EU country on the EU visa whitelist. But many others (including my family, for instance) could not. Let’s conclude on the utter absurdity of this: a British citizen contemplating the use of a Canadian passport to visit the European Union. Is this really the vision of an open, liberal, global United Kingdom after Brexit that the Leave side want people to vote for on June 23rd?

L’accord Union européenne avec la Turquie : l’heure de vérité ?

ORIGINAL PUBLISHED ON CDRE SITE ON 28 AVRIL 2016. 

par Henri Labayle

L’indifférence relative avec laquelle l’opinion publique a accueilli l’annonce d’une nouvelle tragédie en Méditerranée ne doit pas tromper : celle-ci n’est vraisemblablement que l’un des épisodes d’une série à venir.

Ce silence contraste avec l’autosatisfaction bruyante avec laquelle l’Union et ses membres se sont félicités, au même moment, des premières applications de l’accord passé avec la Turquie concernant le renvoi des migrants arrivés en Grèce vers cet Etat tiers. Comme si le problème était en passe d’être réglé, comme si le sérieux des inquiétudes exposées ici s’était dissipé, au point de voir les autorités italiennes proposer de s’en inspirer avec les Etats du bassin méditerranéen pour leur proposer un « pacte migratoire » …

En fait, et au delà des polémiques relatives à la bonne volonté du « partenaire » turc, l’examen attentif de la première évaluation qui vient d’être proposée par la Commission (1) semble présager exactement du contraire (2).

1. Une mise en œuvre opérationnelle sujette à caution

L’accord passé le 20 mars 2016 entre la Turquie et l’Union européenne s’était fixé pour date de mise en œuvre le 4 avril 2016. A cet instant, les premiers retours de la Grèce vers la Turquie et les premières réinstallations vers l’Union européenne devaient avoir lieu. Après une présentation toute médiatique laissant croire aux opinions publiques que la solution était désormais acquise, la Commission s’est livrée à une évaluation plus technique, le 20 avril, dans une Communication relative aux progrès réalisés dans l’application de l’accord du 18 mars ((COM 2016 (231) .

L’exercice devrait se répéter avec une périodicité mensuelle. Cette volonté louable de transparence depuis l’été dernier illustre sans doute à la fois la volonté de la Commission de rendre compte de son action mais aussi de pointer publiquement les responsabilités en cause. Aucun doute n’est permis, elles sont celles des Etats membres.

L’accord du 18 mars, on le sait et au delà des controverses quant à son contenu, avait pour principal objectif du point de vue de l’Union de tarir le flux des migrants en provenance de Turquie et réduire à néant l’attractivité du commerce des trafiquants et autres passeurs. Il espérait y parvenir à la fois en ouvrant un canal légal entre la Grèce et la Turquie et en cordonnant le contrôle de la frontière commune. Pour contrepartie, il impliquait du point de vue turc à la fois un appui financier et administratif mais aussi une relance du processus d’adhésion, en particulier en matière de visas.

Le contrôle de la frontière commune implique d’abord une coopération accrue des forces en présence. De ce point de vue, l’action conjointe de Frontex, de l’OTAN et des autorités turques a, apparemment produit de l’effet puisque le chiffre des arrivées en Grèce serait passé de plus de 25 mille durant les trois semaines précédant l’accord à moins de 6000 depuis. Plus précisément, la Commission fait état du retour forcé de 325 migrants irréguliers n’ayant pas demandé l’asile, entrés après le 20 mars : 240 Pakistanais, 42 Afghans, 10 Iraniens, 7 Indiens, 5 Bangladais, 5 Irakiens, 5 Congolais, 4 Sri Lankais, 2 Syriens, 1 Somalien, 1 Ivorien, 1 Marocain, 1 Egyptien, 1 Palestinien. Ces retours ont été opérés sous l’égide de l‘accord de réadmission Grèce/Turquie, avant que, le 1er juin, l’accord de réadmission entre l’Union et la Turquie ne prenne le relai, après approbation du Parlement turc.

Sans doute faut-il y voir aussi les premiers fruits des échanges avec les autorités turques concernant la lutte contre les passeurs, via la présence d’agents de liaison à Europol et à Frontex, et de la stratégie de communication en direction des migrants tendant à contrebalancer le discours sécurisant des passeurs.

Il reste que le gigantesque effort sollicitant à la fois l’Union et ses agences mais aussi les Etats membres demeure encore très largement à produire, au plan matériel et financier comme au plan opérationnel. L’exposé financier des efforts attendus est en effet parfaitement clair, les mécanismes actuels d’aide d’urgence à la Grèce ou de financement des efforts de Frontex et du Bureau européen d’asile n’étant pas à la hauteur suffisante. Fait peu fréquent dans ce registre, la Commission n’hésite pas à épingler explicitement 12 Etats membres à la fin de sa communication pour n’avoir encore versé aucune contribution à ce jour (l’Autriche, la Belgique, Chypre, la Croatie, l’Espagne, la Lituanie, Malte, la Pologne, la Roumanie, la Slovénie). En revanche, 16 États membres de l’UE ont désormais envoyé leurs certificats de contribution, pour un montant de 1,61 milliard d’euros sur les 2 milliards promis pour 2016-2017

Du point de vue opérationnel, les choses ne sont guère plus encourageantes. Si autour du coordonnateur nommé par la Commission et le comité de pilotage qu’elle conduit avec la Grèce, les agences intéressées et un certain nombre d’Etats membres, la mécanique s’est mise en place, il n’en est pas forcément de même du soutien attendu des Etats membres.

La Commission se félicite de ce que Frontex ait déployé dans les îles grecques près de 318 agents d’escorte et 21 experts en réadmission à l’appui des opérations de retour et que 25 officiers de liaison turcs soient déployés dans les centres de crise grecs et 5 officiers de liaison grecs aux points d’arrivée en Turquie. De même, une petite centaine d’agents du Bureau européen d’asile sont à l’oeuvre, pour une cinquantaine d’entretiens quotidiens avec pour objectif d’en mener 200 à la mi-mai. Au vu de l’ampleur de la tâche et de son sérieux indispensable, les doutes sont donc permis. Car, à vouloir réserver aux Etats membres le fonctionnement des agences de l’Union, ces derniers sont pris à leur propre piège lorsque l’on évalue leur degré d’implication. La Communication de la Commission et ses annexes et autres « fact sheet » (méprisant comme à l’ordinaire la langue officielle de trois Etats fondateurs de l’Union) fournissent à cet égard des tableaux éloquents quant à l’effort réel des Etats à la fois au vu des demandes effectuées et des réponses Etat par Etat.

Attentes

Bilan avril

L’autre volet de la contribution des Etats membres tient dans la réalisation des engagements pris il y a plusieurs mois et demeurés largement lettre morte depuis juillet 2015, bafouant ouvertement les obligations juridiques contractées. L’accueil par les Etats membres conditionne en effet le jeu du principe « 1 + 1 ». Si la Commission présente un schéma décisionnel où la Turquie saisirait le HCR d’une liste de candidats à la réinstallation, pour évaluation et avant une décision finale des Etats membres concernés, la réalité des chiffres est toute autre.

A ce jour et sur la base de l’accord, 103 Syriens seulement ont gagné l’Allemagne, la Finlande, la Suède et les Pays Bas depuis la Turquie … Initialement, 22 500 places offertes à la réinstallation avaient été arrêtées en 2015, et 5677 ont été pourvues, principalement pour soulager les Etats voisins tels que la Jordanie et le Liban et grâce à l’appui des Etats associés à l’Union, comme en témoigne les tableaux fournis par la Commission. Il reste donc 16.800 places disponibles…

Réinstallation UE

Reisntallation associés

Afin de donner un minimum de crédibilité à l’accord passé avec la Turquie, la Commission a donc proposéd’ajouter à ces chiffres, les 54 000 places de relocalisation prévues initialement pour soulager l’Italie et la Grèce, en modifiant la décision 2015/1601 du 22 septembre 2015. Ce faisant, cette approche strictement comptable permettrait d’aboutir au chiffre total de 70 800 places à mettre dans la balance des relations avec la Turquie. Elle ne masque pas la démission des Etats comme en témoignent les chiffres que la Commission fournit elle même, bien volontiers.

Relocalisation Italie 11 avrilRelocalisation Grece

Dans ces conditions, les tensions entourant l’application de l’accord du 18 mars se comprennent aisément. Outre les difficultés pratiques extrêmement délicates à régler, les arrières plans politiques et juridiques ne sont pas réglés, bien au contraire.

2. Une mise en œuvre juridique sujette à critiques

Dès la conclusion de l’accord, l’interprète le plus qualifié qui soit en matière d’application de la Convention de Genève, le Haut Commissariat aux réfugiés avait émis expressément ses réserves. Celles-ci sont généralement partagées tant par la doctrine que par l’essentiel des ONG et d’une part de la classe politique. Fait peu habituel, l’Assemblée consultative du Conseil de l’Europe a même exprimé ses critiques dans une résolution, le 20 avril.

Elles tiennent en un doute principal, celui de la crédibilité du partenaire turc et de la fiabilité de ses pratiques. Comment un tel contributeur aux jurisprudence les plus sévères de la Cour européenne des droits de l’Homme pourrait-il inspirer la confiance, faisant preuve d’une constance remarquable de ce point de vue : il est à ce jour l’Etat partie à la CEDH ayant fourni le contingent le plus important d’arrêts à Strasbourg (17,13 %) et la pente sur laquelle s’engagent ses nouveaux dirigeants mène à penser que le pire est à venir … En d‘autres termes, comment imaginer qu’un Etat tiers réticent à reconnaître effectivement des garanties fondamentales à ses propres ressortissants pourrait assurer, a priori, la protection efficace de ressortissants de pays tiers ?

Seul, l’aveuglement insondable du Président du Conseil européen peut lui permettre d’afficher sans vergogne dans ses conditions sa « fierté » quant à un tel partenariat …

Le principe même d’un transfert systématique en direction de la Turquie demeure donc au cœur du débat, tel que le HCR lui même en avait exposé les termes immédiatement après l’accord avec l’Union. Le concept de pays tiers sûr est évidemment admis par le droit de l’Union, comme indiqué précédemment, mais il continue à poser concrètement la question de son application au cas d’espèce.

Afin de considérer que la Turquie émargeait à cette catégorie, il fallait, d’une part, remplir des conditions juridiques dans le pays de départ, la Grèce, et dans le pays de retour, la Turquie, et, d’autre part, que des garanties effectives soient apportées. Sous peine, comme le soulignait le HCR, de justifier une saisine de la Cour de justice à titre préjudiciel, argument qui a d’ailleurs trouvé un écho au Parlement européen.

Pour ce qui est de la mise à niveau juridique, des règles spécifiques devaient d’abord être introduites dans la législation grecque, notamment afin d’offrir un accès réel aux procédures et à un recours effectif aux personnes concernées. Il en allait de même en ce qui concerne la portée des engagements de la Turquie au regard de la Convention de Genève. La Grèce a ainsi adopté le 3 avril une loi lui permettant d’appliquer les concepts de pays tiers sûr et pays sûr de premier asile ainsi que d’assurer des procédures accélérées pour l’examen des demandes d’asile, en matière d’appel. Malgré l’optimisme affiché par la Commission dans son rapport d’évaluation évoqué précédemment, la création d’une vingtaine de « comités d’appel » demandera confirmation quant à son efficacité. Pour ce qui est de la Turquie et après quelques réticences, a été adoptée début avril la législation permettant d’accorder une protection temporaire aux ressortissants syriens « remis », conformément à la Convention de Genève. De même auraient été fournies les assurances nécessaires concernant les non-Syriens réadmis. En bref, la couverture juridique exigée par l’Union parce que légitimant l’accord semblait avoir été obtenue.

Au plan pratique, les choses se sont avérées beaucoup moins simples.

En Grèce d’abord, où se sont multipliées les accusations de déficiences à l’encontre de l’administration grecque. Avec tout de même et quelles que soient les positions des uns ou des autres, minimisant ou accentuant ces défaillances, une forte présomption de vraisemblance. Comment un Etat membre incapable depuis de nombreuses années d’accomplir ses obligations en matière de protection internationale, comme constaté à de multiples reprises par les juridictions européennes, au point de voir suspendre les transferts Dublin en sa direction, pourrait brusquement se transformer du tout au tout en quelques semaines ?

Au cœur du dispositif, la question de la rétention des demandeurs de protection et des conditions dans lesquelles celle-ci se déroule est incontestablement d’une gravité certaine. Non pas que la retenue des demandeurs de protection soit contraire à la législation de l’Union, ce qui n’est pas le cas, mais parce que les conditions matérielles et juridiques dans lesquelles ces privations de liberté sont réalisées posent manifestement problème, provoquant de ce fait la mise en retrait de nombre d’ONG. Le rapport de l’Assemblée parlementaire du Conseil de l’Europe mérite à cet égard une citation intégrale : « la capacité prévue des trois plus grands centres d’accueil et d’enregistrement (Lesbos, Chios et Samos) a été très rapidement saturée. Ces centres sont devenus surpeuplés et les conditions de vie se sont détériorées: nourriture de mauvaise qualité, abris précaires, conditions d’hygiène déplorables, accès insuffisant à des soins médicaux appropriés ».

Pour ce qui est de la Turquie, la situation faite aux ressortissants non-syriens pose évidemment problème au regard du principe de non-discrimination et quoi que l’on en dise à Bruxelles. De l’Afghanistan à l’Erythrée, la misère humaine dépasse la situation particulière de l’exode syrien. Aussi, les « assurances » données à l’Union par la Turquie les concernant sont loin d’être suffisantes quant à leur accès à une procédure d’asile. D’autant que se multiplient les rapports alarmants relatif à la situation réelle des demandeurs de protection dans le pays ou quant au respect du principe de non-refoulement.

D’où l‘accentuation des pressions politiques et une multiplication des contacts directs avec la Turquie, le dernier en date prenant la forme d’une visite sur le terrain d’Angela Merkel et de Donald Tusk. Visite d’un village Potemkine ou tentative de forcer les blocages en cours, l’interprétation exacte de cette venue est délicate, destinée à légitimer l’action en cours autant qu’à établir un rapport de force avec l’opinion publique, l’initiative étant vertement critiquée dans la presse allemande la qualifiant de « farce« .

Car s’est ouvert entretemps un autre front, celui du lien effectué par les autorités turques entre la pérennité de l’accord avec l’Union et la libéralisation des visas à l’égard des ressortissants turcs.

On saura au mois de juin si cette « promesse faite au peuple turc », selon le premier ministre turc, peut ou non être honorée. En l’état, la Commission, avec cet optimisme qui la prive souvent de crédibilité, produira une évaluation le 4 mai, rapport sur la base duquel on saura si les 72 critères à remplir par la partie turque sont satisfaits ou non et si une proposition législative en bonne et due forme concrétise cette mise à niveau. A ce stade et selon les informations fournies par la Commission, il semblerait qu’une cinquantaine de ces critères soient effectivement acceptés, ce qui suppose néanmoins qu’en un mois un progrès conséquent doive encore être fait. Ce à quoi invite la Commission, par l’intermédiaire de son premier vice-président devant le Parlement européen.

Co-législateur, ce dernier pourrait donner davantage de fil à retordre qu’on ne le croit aux Etats membres, accusant d’ores et déjà ces derniers de sacrifier leur sécurité sur l’autel de la collaboration avec la Turquie et au détriment des demandeurs de protection. Une première salve a ainsi été tirée le 14 avril à propos du rapport 2015 consacré à la Turquie, dans une résolution dont les huit paragraphes consacrés à l’accord passé avec l’Union méritent le détour. D’où les rumeurs récentes quant à une initiative franco-allemande liant l’accord sur la libéralisation des visas à l’introduction d’un mécanisme de sauvegarde, type « emergency break », qui permettrait une suspension de cet accord en cas de tensions migratoires ou de problème sécuritaire. Au vu du climat de la réunion de la Commission Libé, le 21 avril, la partie est loin d’être gagnée …

Au total donc, les semaines à venir seront lourdes de conséquences.

Pour les réfugiés d’abord et avant tout, peu convaincus par la pseudo-voie d’accès légal qui leur est ainsi ouverte et qui laisse en suspens le sort de dizaines de milliers d’entre eux, n’entrant pas dans le champ d’application du texte. La proximité de l’été et l’ampleur de la reprise des traversées de la Méditerranée donneront très rapidement la réponse de l’efficacité de l’accord avec la Turquie.

Pour l’Union ensuite et sa pitoyable tentative de sous-traitance de ses valeurs et de ses obligations à un partenaire retors. De Charybde en Scylla, le prochain partenariat de ce genre impliquera-t-il la Libye ?

Pour les Etats membres de cette Union, enfin, que nul renoncement ne rebute, en Autriche ou ailleurs, et dont la solidarité ne se vérifie qu’à l’instant de renier le contrat sur laquelle leur Union s’était fondée.

The balance between criminal law and international humanitarian law in terrorism cases

Intervention at the 10th ECLAN Conference, 26 April 2016 in Brussels

by Vaios KOUTROULIS (*)

On April 8 2016, in Anderlecht, the Belgian police arrested five people linked to the 22nd March bombings in the airport and metro station of Brussels. Among them was Mohamed Abrini who has admitted that he was one of the three persons that were filmed by security cameras in the Brussels airport. Among the persons arrested was also Osama Kareym, who is suspected to have taken part in the bombing on the Brussels subway. Both are also linked to the 13 November Paris attacks.

Can these participants in the 22nd March bombings in the airport and metro station of Brussels be criminally persecuted for terrorist crimes before Belgian courts?

In principle, the answer seems to be a straightforward YES.
The object of my presentation is to show that the question is much more complicated than it may appear at first sight.
This complication stems from the Belgian Criminal Code.
Indeed, in the section relating to terrorist offences of the Belgian Criminal Code, the penultimate article (article 141bis) excludes from the scope of application of the section the activities of armed forces in times of armed conflict as defined and regulated by international humanitarian law (IHL).

The origin of this article, which is a saving clause, is the last preambular paragraph of the Council Framework Decision of 13 June 2002 on combatting terrorism which reads as follows:
“Actions by armed forces during periods of armed conflict, which are governed by international humanitarian law within the meaning of these terms under that law, and, inasmuch as they are governed by other rules of international law, actions by the armed forces of a State in the exercise of their official duties are not governed by this Framework Decision”.

This provision is reflected in several international conventions relating to the prohibition of terrorist acts.[1] As it is clear from the text of this article, the scope of application of the terrorist offences is defined / determined by the rules of IHL. So, under Belgian criminal law, IHL and terrorist offences are mutually exclusive legal regimes. Thus, in order to correctly appreciate which acts may be criminally prosecuted under Belgian law as terrorist acts, we need to go through the definition of the relevant IHL concepts.

I will make three points with respect to this provision, and this rule of mutual exclusion.

  1. First, I will briefly discuss the IHL notions of “armed forces” and “armed conflict” in order to give a clearer idea of what is excluded from the definition of terrorist offence.
  2. Second, I will briefly discuss how the savings clause has been applied in Belgian case-law
  3. Third, I will explain the purpose, la raison d’être, of the clause and why it is important to maintain it.

A. What is not a terrorist offence?

Actions by armed forces during periods of armed conflict, which are governed by international humanitarian law
Armed forces = both armed forces of a State, of an international organisation or of a non-State actor.

The argument is sometimes raised that the concept of “armed forces” should be limited only to State armed forces, in other words, that only activities by State armed forces are excluded from the scope of application of terrorist offences, while those of non-State actors are not. This interpretation is not supported by the text of the provision.

According to the ICRC, customary IHL defines armed forces as follows:
“The armed forces of a party to the conflict consist of all organized armed forces, groups and units which are under a command responsible to that party for the conduct of its subordinates.” (rule 4, source art. 43 AP I)
Armed forces of a State are quite clear to identify = regular forces of States (membership regulated by domestic law; members of irregular groups belonging to a party to the conflict)

Armed forces of a rebel group, a non-State actor are more difficult to identify.
Again according to the ICRC, “In non-international armed conflict, organized armed groups constitute the armed forces of a non-State party to the conflict and consist only of individuals whose continuous combat function it is to take a direct part in hostilities.” (ICRC, Interpretative guidance on DPH, 2009)

  • Continuous combat function requires a lasting integration into an organised armed group acting as the armed force of a non-State party to an armed conflict;
  • Individuals whose function involves the preparation, execution, command of acts or operations amounting to direct participation in hostilities have a continuous combat function;
  • Individuals recruited, trained and equipped by a group to continuously and directly participate in hostilities have a CCF;
  • Recruiters, trainers, financiers, propagandists may continuously contribute to the general war effort of a non-State party but are not members of the armed forces of the group, unless their activities amount to DPH[2].
  1. Armed conflict = both international and non-international

IAC: conflict between states or between a State and an intl org.
NIAC: conflict between State and rebel group or between two or more rebel groups.
Two conditions: intensity of hostilities[3] and organisation of the parties[4].

Another factor that may come into play in determining whether an armed conflict exists relates to the geographical scope of application of an armed conflict. This is interesting since there have been some very extensive interpretations relating to the geographical scope of application of armed conflict that have been suggested. I am referring to the concept of the “global war on terror” put forth by the United States. According to this view, an armed conflict against a terrorist group basically knows no boundaries and exists wherever the terrorist is found. This theory has been invoked by the United States in order to allow them to invoke IHL as a justification for drone strikes against terrorists around the world. However, the drawback of such an extensive reading of IHL is that is the armed conflict follows the terrorist, then any act committed by him/her anywhere in the world will be considered as committed in the context of an armed conflict and therefore will not be qualified as a terrorist offence…

B. How have the Belgian Courts applied the saving clause in art. 141bis?

The answer is simple: very restrictively.
The defendants’ lawyers have invoked the clause in some cases but Belgian Courts have been up to now very reluctant in applying it. This has resulted in some very problematic interpretations of IHL concepts, since in order for the judges to reject the clause, they have interpreted the notions of “armed forces” and “armed conflict” very restrictively.

Thus, for example, in a case concerning the death of a Belgian national in Iraq in the context of an attack against the US armed forces present in Iraqi territory[5]. The relevant period was from January 2004 to November 2005. The 2008 judgment by the first instance tribunal[6] considered that there was no armed conflict in Iraq during the period in question. This classification was clearly unsupported by the facts in question, since even the US recognised that they were involved in an armed conflict and a belligerent occupation at least for the first months of the relevant period.

Another example, in a more recent case, deals with Sharia4Belgium, a group founded in 2010 having played an active role in the departure of combatants in Syria in order to join armed groups Jahbat Al-Nusra and Majlis Shura Al Mujahidin (affiliated with Al-Qaeda).

In the First instance judgment, handed down in 2015[7], the Tribunal held that there was an armed conflict in Syria to which the groups in question was involved. It also clarified that the armed conflict did not extend to Belgium. The consequence of that was that, in any case, the saving clause could not be invoked for acts which took place in Belgium. However, turning to the notion of “armed forces” the Tribunal refused to recognise that the two groups in question are “armed forces” within the meaning of IHL. This goes against the classification of the UN Commission of Enquiry on Syria. It also goes against well-established IHL rules. Indeed, the Tribunal, in order to reject to the two groups their character as “armed forces” defines “armed forces” very restrictively and imposes the respect of many conditions for a group to be classified as an “armed force”, conditions which have no legal basis in IHL.[8]

C. Why does the saving clause exist and why should it be maintained?

The reason for the saving clause is the recognition of the specificity of IHL as the legal regime which is best adapted in dealing with situations of armed conflict.

The need to preserve this specificity.

Firstly, IHL has its own list of crimes (war crimes) => the fact that an act does not constitute a terrorist offence does not mean that it is not a crime under international and national law or that its authors will remain unpunished.
Terrorism as a method of warfare is prohibited under IHL, both in international and non-international conflicts (Art. 33 4th GC; art. 51§2 AP I; art. 4§2(d) and 13§2 AP II).
It is also a war crime (ICTR Statute; SCSL Statute).

Secondly, the difficulty in finding common ground with respect to a definition of terrorism in international law, entails the risk of abuse of the notion of terrorism. This risk is particularly high in situations of armed conflict, especially in NIACs since the government always considers that the rebels are terrorists.

NOTES

[1] 1997 International Convention for the suppression of terrorist bombings, art. 19§2:
“The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.”
2005 International Convention for the Suppression of Acts of Nuclear Terrorism, art. 4§2:
“The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law are not governed by this Convention, and the activities undertaken by military forces of a State in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention.”
2005 Council of Europe Convention on the Prevention of Terrorism, art. 26 §5:
“The activities of armed forces during an armed conflict, as those terms are understood under international humanitarian law, which are governed by that law, are not governed by this Convention, and the activities undertaken by military forces of a Party in the exercise of their official duties, inasmuch as they are governed by other rules of international law, are not governed by this Convention. »
1979 International Convention against the Taking of Hostages, art 12
“In so far as the Geneva Conventions of 1949 for the protection of war victims or the Protocols Additional to those Conventions are applicable to a particular act of hostage-taking, and in so far as States parties to this Convention are bound under those conventions to prosecute or hand over the hostage-taker, the present Convention shall not apply to an act of hostage-taking committed in the course of armed conflicts as defined in the Geneva Conventions of 1949 and the Protocls thereto (including IACs of AP I)”
1999, International Convention for the suppression of the Financing of Terrorism, art. 2:

  1. Any person commits an offence within the meaning of this Convention if that person by any means, directly or indirectly, unlawfully and wilfully, provides or collects funds with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out:

(…)
(b) Anyotheractintendedtocausedeathorseriousbodilyinjurytoacivilian,orto any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.
[2] DPH condition – direct causation = one causal step between activity and the harm to the adversary:

  • although recruitment and training of personnel is crucial to the military capacity of a party to the conflict, the causal link with the harm inflicted on the adversary will generally remain indirect. Only where persons are specifically recruited and trained for the execution of a predetermined hostile act can such activities be regarded as an integral part of that act and thus as DPH.
  • General war effort and war sustaining activities (design, production, shipment of weapons, propaganda, financial support) are not DPH.
  • Purchase, smuggling of the components of an explosive device, assembly of the device, storage of the device are connected with the resulting harm but are not DPH; only planting and detonating the device are DPH.
  • General preparatory acts do not constitute DPH: purchase, roduction, smuggling, hiding of weapons, general recruitment and training of personnel, financial administrative or political support.

[3] For the intensity of the conflict, these factors include ‘the number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict’; ICTY, Haradinaj 2008 Trial Judgment, supra note 26, para. 49. For further references, see ICTY, Boškoski and Tarčulovski 2008 Trial Judgment, supra note 26, paras. 177-178.
[4] As to the organisation of the parties, relevant for dissident armed groups, the indicative factors identified by the ICTY, include ‘the existence of a command structure and disciplinary rules and mechanisms within the group; the existence of headquarters; the fact that the group controls a certain territory; the ability of the group to gain access to weapons, other military equipment, recruits and military training; its ability to plan, coordinate and carry out military operations, including troop movements and logistics; its ability to define a unified military strategy and use military tactics; and its ability to speak with one voice and negotiate and conclude agreements such as cease-fire or peace accords’; ICTY, Haradinaj 2008 Trial Judgment, supra note 26, para. 60. For further references, see ICTY, Boškoski and Tarčulovski 2008 Trial Judgment, supra note 26, paras. 199-203.
[5] Case of the “fillières iraquiennes”, Muriel Degauque.
[6] Tribunal correctionnel de Bruxelles, 10 janvier 2008.
[7] Tribunal correctionnel d’Anvers, 11 février 2015.
[8] Such as the obligation to respect rules of IHL.